How can the term for PBR be changed?
Protection for plant breeder’s rights (PBR) lasts up to 20 years for most plant species and 25 years for trees and certain vines. Regulations can be made under subsection 22(3) of the Plant Breeder’s Rights Act 1994 (PBR Act) to provide a longer term of protection for a variety within a specified taxon.
Making regulations to provide a longer term of protection is a legislative decision made by government. Regulations are made by the Governor-General on the advice of the Minister responsible for administering the PBR Act.
This isn't a decision made lightly — the purpose of the PBR Act is to provide an incentive for research and innovation to encourage the development of new plant varieties. Any new regulations made under PBR legislation must support this purpose.
What factors are considered?
Whether regulations should be made will be considered on a case-by-case basis.
Factors that may be considered include:
- The reason why an extension is being requested i.e. why the existing 20 or 25 year term is inadequate to promote innovative plant breeding within the requested taxon
- An evidence-based explanation of how an extension will address the problem
- The possible impact on third parties affected by the extension
- The perceived consequences if an extension isn't granted
- The size of the taxonomic category for which an extension is sought
- The anticipated commercial life of plant varieties within that specific taxon
- The overall net benefit to the community of extending the duration of protection.
Making a request
If you’d like us to consider if regulations should be made to provide a longer term of protection for a variety, you can submit an issue via our Policy Register.
Your submission should include as much detail as possible to help us make an assessment against the factors outlined above.
Once we receive the submission, we'll assess the issue to determine whether there's evidence of a problem that would justify detailed consideration and the possible making of regulations.
If we’re satisfied that there’s evidence of a problem, we’ll undertake a detailed analysis of the issue. This will include consultation with all parties that could be affected by the making of regulations. We'll then advise government on the outcome.
How new regulations are made
If the government determines there's a need to make regulations:
- The regulation is made by the Governor-General on the advice of the Minister responsible for administering the PBR Act
- The duration of protection for PBR in the specified taxon will be longer than the standard terms.
The timeframe from lodging a request to regulations being made may vary however, the making of regulations is a lengthy process.
How new regulations apply
Regulations to extend the duration of protection for a specific taxon do not apply retrospectively.
This means that the longer term of protection only applies to PBRs granted after the regulations have been made. Regulations won't extend the term of protection for existing rights.